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Issue #1551      13 June 2012

Native title reforms

Aboriginal and Torres Strait Islander Social Justice Commissioner Mick Gooda has welcomed the native title reforms announced last week.

“I am heartened by these significant reforms which overall appear to indicate a more flexible and responsive approach on the horizon to the needs of Aboriginal and Torres Islander people negotiating the native title system,” Commissioner Gooda said.

“The reforms have the potential to improve outcomes for Aboriginal and Torres Strait Islander people in our efforts to have our traditional connection to, and rights and interests in our lands, territories and resources recognised but only if we are actively involved in negotiations.

“Overall, the reforms are a step in the right direction but we will need further reform to address inequities that remain in the native title system, such as reversing the current and onerous burden of proof provisions,” he said.

Commissioner Gooda also welcomed the proposals to allow parties to disregard the historical extinguishment of native title in areas set aside as parks or reserves.

“This reform will go some way towards overturning some of the entrenched dispossession and disadvantage caused by the breadth and permanency of past and current extinguishment practices,” he said.

“The extinguishment of Indigenous rights to land by unilateral uncompensated acts is also completely at odds with Australia’s human rights obligations, specifically the United Nations Declaration on the Rights of Indigenous Peoples which Australia has formally supported for more than three years. I’d also like further consideration to be given to expanding the range of circumstances in which historical extinguishment of native title can be disregarded,” he said.

Mr Gooda welcomed the proposal to legislate the requirements for good faith negotiations.

“Clarifying and strengthening the good faith requirements under the right to negotiate provisions in the Native Title Act is long overdue,” he said.

“We support the inclusion of explicit criteria for what constitutes good faith as these are one of the few procedural safeguards that native title parties have under the Act.”

Commissioner Gooda said the interaction between native title and the income tax system has always been complex and uncertain and he welcomed the tax changes announced today.

“Native title payments, monetary and non-monetary, are in effect a form of compensation and should not be subject to taxation so I’m pleased to hear that income tax and capital gains tax will not apply to payments from native title agreements,” Mr Gooda said.

“Tax exemption will provide certainty of treatment for those receiving payments but I’d like to see this eventually go further with the introduction of a new tax exempt vehicle for use by Indigenous peoples receiving and using native title payments.”  

Next article – “I give a Gonski” campaign launched

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